Citation Nr: 1107508
Decision Date: 02/24/11 Archive Date: 03/09/11
DOCKET NO. 04-13 715 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUE
Entitlement to service connection for a low back disorder.
REPRESENTATION
Appellant represented by: Virginia A Girard-Brady,
Attorney at Law
ATTORNEY FOR THE BOARD
C. R. Olson, Counsel
INTRODUCTION
The veteran reports active service from March 1969 to March 1977.
The back claim comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from a March 2007 decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in Atlanta,
Georgia.
In January 2009, the Board denied a disability rating in excess
of 20 percent for post-traumatic chondromalacia of the left knee
with instability and a rating in excess of 10 percent for
arthritis of the left knee with limitation of motion. The back
claim was remanded for examination of the Veteran and a medical
opinion. The examination was conducted in March 2009 and an
opinion was rendered. In as much as the development requested by
the Board as been completed, we proceed with the appellate
review.
FINDINGS OF FACT
1. The Veteran does not have a low back disorder as the result
of disease or injury during active service.
2. The Veteran does not have a low back disorder as the result
of a service-connected disability.
3. Neither a generalized osteoarthritis nor osteoarthritis in
the low back was manifested within the first post service year.
CONCLUSION OF LAW
A low back disorder was not incurred in or aggravated by active
military service, is not proximately due to or the result of a
service-connected disease or injury, and arthritis may not be
presumed to have been incurred in service. 38 U.S.C.A.
§§ 101(16), 1101, 1110, 1131, 1112 (West 2002); 38 C.F.R.
§§ 3.303, 3.307, 3.309 (2010).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Duties to Notify and Assist
As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), VA has a duty to notify and assist claimants in
substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010).
In a letter dated in December 2006, the RO provided the Veteran
with an explanation of the type of evidence necessary to
substantiate his claim for service connection on both a primary
and secondary bases, as well as an explanation of what evidence
was to be provided by him and what evidence the VA would attempt
to obtain on his behalf. The initial notice letter was provided
before the adjudication of his claim in March 2007. The December
2006 letter also provided notice regarding potential ratings and
effective dates. See Dingess v. Nicholson, 19 Vet. App. 473
(2006). VA has complied with the notice requirements of VCAA and
has no outstanding duty to inform the appellant that any
additional information or evidence is needed. Therefore, the
Board may decide the appeal without a remand for further
notification.
The Board also finds that all relevant facts have been properly
developed, and that all evidence necessary for equitable
resolution of the issue has been obtained. The Veteran's service
medical records have been obtained. His available post-service
treatment records have also been obtained. The Veteran has had a
VA examination and a medical opinion has been obtained. He has
declined the offer of a hearing. Significantly, neither the
Veteran nor his representative has identified, and the record
does not otherwise indicate, any additional existing evidence
that is necessary for a fair adjudication of the claim that has
not been obtained. Hence, no further notice or assistance to the
Veteran is required to fulfill VA's duty to assist the appellant
in the development of the claim. Smith v. Gober, 14 Vet. App.
227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v.
Principi, 15 Vet. App. 143 (2001); see also Quartuccio v.
Principi, 16 Vet. App. 183 (2002).
Discussion
The Veteran's service treatment records do not document any
injury or symptoms involving the lumbar spine or sacrum during
the Veteran's active service. A knee injury is of record.
Clinical notes reflect a history of being blown out of a 15 foot
tower while serving in Vietnam. They show complaints of knee
pain and treatment. An April 1974 X-ray study showed the bony
architecture of the left knee to be within normal limits. The
knee joint was well maintained, as were the adjacent soft
tissues. There was no evidence of recent fracture. There was
an evulsion type fragment along the anterior tibial tuberosity.
It was commented that it might be secondary to previous Osgood-
Slatter's disease. No other bony or soft tissue abnormalities
were noted. In September 1976, X-rays were read as showing a
slight irregularity in the region of the tibial tuberosity, which
probably represented the normal ossification that occurred in
that area. The study was otherwise within normal limits.
In late January 1976, the Veteran fell, landing on his coccyx.
X-ray studies showed the coccyx had an unusual anterior
angulation, but there was no evidence of recent trauma or other
significant abnormality. The adjacent soft tissues were within
normal limits. Hot tub soaks and minimal sitting were
recommended. Complaints of pain in the coccyx were recorded in
February 1976. Another X-ray study showed the sacrum and coccyx
were normal. Complaints of coccyx pain were recorded as late as
April 1976. There were no further coccyx complaints, even though
the Veteran returned to the clinic in June 1976 and thereafter,
with other complaints. On examination for separation from
service, in January 1977, the Veteran's musculoskeletal system
was reported to be normal.
An April 1977 decision by a VA RO granted service-connection for
post traumatic chondromalacia of the left knee, with a 10 percent
evaluation.
In July 1982, the Veteran sought VA hospital treatment for
vomiting. There were no knee or back complaints.
A VA clinical record dated in February 1990 shows the Veteran
reported that he was climbing steps when his left knee gave way
and he fell injuring his left hand. X-rays of the hand and left
knee were read as normal. When seen in August 1990, he reported
that the knee gave way about twice a week.
In May 1991, the Veteran reported that he fell and hurt his back
the previous evening. He complained of tenderness in the lower
back. Analgesics and heat were recommended. He was told to
avoid heavy physical activity for 2 to 3 days and return to the
clinic if symptoms persisted. When he returned, in July 1991, it
was for other symptoms. In July 1992, the RO continued the 10
percent rating for the left knee.
In February 1996, the left knee was treated with an arthroscopy
and medial meniscectomy.
On examination for VA, in January 2000, the Veteran complained of
left knee pain, weakness, stiffness, swelling, instability, and
locking. He had worked as a security officer for 23 years.
Examination showed his posture and gait were normal and he had no
significant problems standing. He reported that he could not
walk for more than an hour without significant pain in his left
knee. There were no back complaints or findings.
The Veteran was again examined for VA in June 2002. He reported
pain, locking, and swelling. Leg lengths were 101 centimeters on
the right and 102 centimeters on the left. There was no evidence
of abnormal weight bearing. Examination showed slight
prepatellar swelling or fullness and some limitation of motion.
Tests for instability were slightly and moderately positive. The
X-ray study of the left knee was normal with a bony prominence of
the tibial tubercle, which was considered to likely be
developmental. An addendum to the report was issued in November
2002. No back complaints or findings were recorded.
X-ray studies of the lumbosacral spine, in November 2004, were
interpreted as revealing mild facet arthropathy of the lower
lumbar spine, with degenerative disc disease at L5-S1 and
possibly L4-L5. Straightening of the lumbar lordosis was thought
to be related to positioning or muscle spasm.
A VA clinical note of December 2004, shows the Veteran complained
of lower back pain after a fall 24 hours earlier. He said he had
a similar episode a month before. There was muscle spasm and a
contusion. Pain medication was provided.
A VA clinical note, dated in January 2006, shows that the Veteran
dropped off a form from a service organization. The doctor was
asked for an opinion as to whether the service-connected left
knee aggravated the Veteran's back beyond its natural progress.
The doctor deferred comment.
On examination for VA, in January 2007, the Veteran reported left
knee symptoms including instability, weakness, stiffness, heat,
giving way, and locking. On examination, both leg lengths were
equal. The feet did not show signs of abnormal weight bearing.
Posture was within normal limits. Gait was asymmetrical due to
left knee limitation of motion and left lower extremity distal
weakness. No back complaints or findings were reported.
In February 2007, the Veteran was seen at the VA emergency room
complaining of having pain across the entire lower back for 3
days, with tingling of his toes on the left and pain in the lower
left leg. Left knee pain was reportedly chronic. There was
tenderness in the lumbar area and a painful range of motion. The
assessment was low back pain.
A VA clinical note, dated in March 2007, reflects a complaint of
9/10 pain from the left lumbar spine to the leg after falling in
mid-February. Motrin had little effect on his pain. He was
observed to be limping. The assessment was status post fall with
pain. The March 2007 X-rays showed no acute fracture or static
subluxation. There was mild degenerative disc disease and
degenerative facet disease.
The Veteran was examined for VA in February 2008. It was
reported that he had been blown out of a 40 foot tower while in
Vietnam. The earliest report put the height of the tower at 15
feet. In any event, the Veteran complained of left knee pain,
weakness, swelling, giving way, and locking. Examination showed
his posture and gait to be within normal limits. The feet did
not reveal any signs of abnormal weight bearing. The left knee
symptoms included tenderness and crepitus. No back symptoms,
complaints, findings, or diagnoses were reported.
The Veteran had a VA examination of his spine in March 2009. The
claims file was reviewed. He related recurrent low back pain
since around March 1977, shortly after release from active duty.
There was no history of injury or strain. The pain was dull,
achy, and localized to the lumbar area. It had become more
constant over time. The pain flared-up about once a month when
aggravated by bending or too much walking. Symptoms were
relieved by lying down or resting. Intensity varied from 6 to 10
on a 10 scale. The Veteran was retired and occasionally did
gardening or worked on his car, which might aggravate his low
back pain.
Leg length measurements were equal. The Veteran's shoes did not
show abnormal wear. His feet did not show signs of abnormal
weight bearing. Posture and gait were within normal limits. He
did not use any assistive devices for ambulation. The spine had
normal symmetry at rest and with motion. There was no curvature
of the spine. There was no tenderness to palpation of the spine.
Mild lumbar spasm was present. There was no evidence of
radiation of pain on movement. There was no guarding.
Restrictions of motion were measured. The Veteran reported
lumbar pain on full extension. No objective evidence of pain was
observed. Neurologic examination showed motor function to be
normal and equal bilaterally, at 5/5. Sensation was intact.
Deep tendon reflexes were diminished at 1+ in the knees and
ankles. X-ray studies were reviewed. The diagnosis was lumbar
spine degenerative disc disease.
The examiner remarked that after review of the claims file,
medical records, current history, physical examination, and
imaging studies, it was his opinion that the low back
degenerative disease was less likely than not a direct result of
the service-connected left knee. He explained that degeneration
of the lumbar spine, like all weight-bearing joints, occurred
over time due to normal wear and tear. The physical examination
and evidence of record showed a normal gait and no evidence of
abnormal weight bearing or injury that might contribute to an
accelerated degenerative process. There was no evidence to
indicated that the Veteran's mild lumbar degenerative disease was
directly caused by the left knee condition nor increased in
severity beyond its natural progress due to the left knee
disability.
Conclusion
The Board has considered all bases for a claim reasonably raised
by the record. See Solomon v. Brown, 6 Vet. App. 396, 400
(1994); EF v. Derwinski, 1 Vet. App. 324, 326 (1991); Myers v.
Derewinski, 1 Vet. App. 127, 130 (1991). Primary or direct
service connection requires that three elements must be
established. There must be medical evidence of a current
disability; medical, or in certain circumstances, lay evidence of
in-service incurrence or aggravation of a disease or injury; and
competent evidence of a nexus between the claimed in-service
disease or injury and the current disability. See 38 U.S.C.A.
§§ 101(16), 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2010); see
also Hickson v. West, 12 Vet. App. 247, 253 (1999).
In this case, there is competent medical evidence of a current
back disorder.
However, there is no evidence of a back injury in service. There
is evidence that he was blown out of a tower injuring his knee,
but there is nothing in the service treatment records that would
indicate that episode resulted in a back injury. Moreover,
review of the claims file does not reflect any claim of a back
injury in service. On the recent VA examination, the Veteran
reported the onset of back pain shortly after completing his
active service. He did not report a back injury or symptoms
during service. Thus, we find that there is no credible evidence
of any relevant back disease or injury during the Veteran's
active service.
Further, the only evidence of continuing symptoms is found in the
March 2009 VA examination report, when the Veteran reported
having back symptoms since March 1977, shortly after leaving
active service. This report is not credible because it conflicts
with earlier information provided by the Veteran for treatment
purposes. As noted above, the earliest recorded back complaint
was in May 1991 and associated the back symptoms with a slip and
fall. The next back complaints, were also associated with a slip
and fall. On neither occasion, did the Veteran report
continuing, chronic back symptoms. There were also intervening
medical treatments for other conditions, without back complaints.
Consequently, the Board finds that the Veteran's earliest
statements, which associated his back symptoms with acute back
injuries years after service, outweigh his recent statement of
chronic back symptoms. Also, evidence of a prolonged period
without medical complaint and the amount of time that elapsed
since military service, can be considered as evidence against the
claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).
Thus, the passage of time without medical complaint and the
Veteran's earliest statements, associating his back symptoms with
falls years after service, form a preponderance of evidence
against primary or direct service-connection. As the
preponderance of the evidence is against the claim, the benefit
of the doubt doctrine is not applicable and the appeal must be
denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.
App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir.
2001).
The Board has also considered presumptive service-connection.
Arthritis may be presumed to have been incurred during active
military service if it is manifest to a degree of 10 percent
within the first year following active service. 38 U.S.C.A.
§§ 1101, 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309
(2010). In this case, there is no evidence that arthritis was
manifested during the first year after the Veteran completed his
active service.
Secondary service connection may be granted for a disability
which is proximately due to and the result of a service-connected
disease or injury. 38 C.F.R. § 3.310(a) (2010). Secondary
service connection requires evidence of a connection to a
service-connected disability. See Reiber v. Brown, 7 Vet.
App. 513 (1995). In this case, the only disabilities for which
service-connection has been established are post traumatic
chondromalacia of the left knee with instability, rated as 20
percent disabling, and arthritis of the left knee with limitation
of motion, rated as 10 percent disabling.
In this case, the Veteran claims that his service-connected left
knee disability has caused his back disorder. Competent medical
evidence is needed to support that claim. An appellant's own
conclusion, stated in support of his claim, that his present
disability is secondary to his service-connected disability is
not competent evidence as to the issue of medical causation. See
38 C.F.R. § 3.159 (2010); see also Grivois v. Brown, 6 Vet. App.
136 (1994).
The Veteran has not submitted any competent medical evidence
connecting his back disorder to his service-connected left knee
disorders. To assist him in the development of his claim, VA
obtained a medical opinion. That opinion was based on
examination of the Veteran and review of the record. It turned
out to be against the claim. Significantly, it explained why the
opinion was against the claim. This explanation was brief but
adequate. It explained that the joints of the back degenerated
over time and that abnormal weight bearing might affect such
degeneration, but there was not evidence of significant abnormal
weight bearing in this case. In as much as the only competent
medical opinion on point is against the claim, and it is
adequately explained, the Board again finds that the
preponderance of evidence is against secondary service-
connection. As the preponderance of the evidence is against
secondary service-connection, the benefit of the doubt doctrine
is not applicable and the appeal must be denied. 38 U.S.C.A.
§ 5107(b); Gilbert; Ortiz.
The preponderance of evidence is consistently against service-
connection on a primary, presumptive, or secondary basis. There
is simply no basis to grant this appeal and it must be denied.
ORDER
Service connection for a low back disorder is denied.
____________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs